In this installment of the D&O Discourse series “5 Wishes for Securities Litigation Defense,” we discuss the third of five changes that would significantly improve securities litigation defense:  to make the Supreme Court’s Omnicare decision a primary tool in the defense of securities class actions.

As a reminder, in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 135 S. Ct. 1318 (2015), the U.S. Supreme Court held that a statement of opinion is only false under the federal securities laws if the speaker does not genuinely believe it, and is only misleading if it omits information that, in context, would cause the statement to mislead a reasonable investor.  This ruling followed the path we advocated in an amicus brief on behalf of Washington Legal Foundation.

The Court’s ruling in Omnicare was a significant victory for the defense bar for two primary reasons.

First, the Court made clear that an opinion is false only if it was not sincerely believed by the speaker at the time that it was expressed, a concept sometimes referred to as “subjective falsity.”  The Court thus explicitly rejected the possibility that a statement of opinion could be false because “external facts show the opinion to be incorrect,” because a company failed to “disclose[] some fact cutting the other way,” or because the company did not disclose that others disagreed with its opinion.  This ruling resolved two decades’ worth of confusing and conflicting case law regarding what makes a statement of opinion false, which had often permitted meritless securities cases to survive dismissal motions.

Second, Omnicare declared that whether a statement of opinion (and by clear implication, a statement of fact) was misleading “always depends on context.”  The Court emphasized that showing a statement to be misleading is “no small task” for plaintiffs, and that the court must consider not only the full statement being challenged and the context in which it was made, but also other statements made by the company, and other publicly available information, including the customs and practices of the relevant industry.

Omnicare governs the falsity analysis for all types of challenged statements.  Obviously, Omnicare should be used to defend against challenges to all forms of opinions, including statements regarded as “puffery” and forward-looking statements protected by the Reform Act’s Safe Harbor for forward-looking statements.  But defense counsel should also take advantage of the Supreme Court’s direction in Omnicare that courts evaluate challenged statements in their full factual context.  Evaluating challenged statements in their broader context almost always benefits defendants, because it helps the court better understand the challenged statements and makes them seem fairer than they might in isolation. Omnicare now explicitly requires courts to evaluate challenged statements—both statements of fact and statements of opinion—within their broader contexts.

Although Omnicare arose from a claim under Section 11 of the Securities Act, all of its core concepts are equally applicable to Section 10(b) of the Securities Exchange Act and other securities laws with similar falsity elements.  Due to the importance of its holdings and the detailed way in which it explains them, Omnicare is the most significant post-Reform Act Supreme Court case to analyze the falsity element of a securities class-action claim, laying out the core principles of falsity in the same way that the Court did for scienter in Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007).  If used correctly, Omnicare thus has the potential to be the most helpful securities case for defendants since Tellabs, providing attorneys with a blueprint for how to structure their falsity arguments in order to defeat more complaints on motions to dismiss.

A good motion to dismiss has always analyzed a challenged statement (of fact or opinion) in its broader factual context to explain why it’s not false or misleading.  But many defense lawyers unfortunately leave out the broader context, and courts have sometimes taken a narrower view.  Now, this type of superior, full-context analysis is clearly required by Omnicare.  And combined with the Supreme Court’s directive in Tellabs that courts consider scienter inferences based not only on the complaint’s allegations, but also on documents on which the complaint relies or that are subject to judicial notice, courts clearly must now consider the full array of probative facts in deciding both whether a statement was false or misleading and, if so, whether it was made with scienter.   

Yet Omnicare will fail to achieve its full potential unless defense lawyers understand and use the decision correctly.  Following the Omnicare decision, many defense lawyers commented publicly that Omnicare expanded the basis for defendants’ liability, and was otherwise plaintiff-friendly.  That is simply wrong.  We have published several articles that address these misunderstandings, explain how defense counsel should use the decision, and analyze how lower courts are applying it.  The early returns show that Omnicare is already helping defendants win more motions to dismiss.

Here is a link to our most recent article, Omnicare, Inc. One Year Later: Its Salutary Impact on Securities-Fraud Class Actions in the Lower Federal CourtsCritical Legal Issues Working Paper Series, Washington Legal Foundation (No. 195, June 2016).

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Photo of Claire Loebs Davis Claire Loebs Davis

Claire Loebs Davis is a seasoned litigator who focuses on using her commercial litigation experience to assist nonprofit entities and advocate for animal and environmental causes. Claire is Co-Chair of Lane Powell’s Nonprofit Team and its Animal and Earth Advocacy Team. She also chairs the Pro Bono Committee in Seattle.

Claire has more than a decade of experience in commercial litigation, including trial and appellate advocacy, and securities and corporate governance litigation. She has represented a wide range of companies and their directors and officers, including Ambassador’s Group, Biovest International, Cell Therapeutics, Dendreon Corporation, Lihua International, Micron Technology, Nordstrom, PremierWest Bancorp, Primo Water, Sterling Financial, Washington Mutual, Washington Banking, WSB Financial Group, and Zumiez.

Claire has assisted nonprofit organizations with a variety of legal needs, including:

  • Helping them to incorporate, draft governance documents and file for federal 501(c)(3) tax-exempt status;
  • Advising them on employment matters, risk assessment and issues of corporate governance; and
  • Representing them in a variety of commercial disputes, such as actions for breach of contract, RICO violations and defamation.

Throughout her legal career, Claire has focused on advocacy on behalf of animals and the environment, including serving as a general counsel and legal consultant for Best Friends Animal Society, the country’s largest animal sanctuary and a leading national proponent of companion animal welfare.  Since leaving Best Friends to enter private practice, Claire has represented nonprofit organizations including the Animal Legal Defense Fund and the Center for Biological Diversity, in addition to multiple regional animal rescues and sanctuaries. She has also been extensively involved in community advocacy efforts, including leading a successful grassroots effort to reform King County, Washington’s animal shelters.

Claire defended the former Administrative Director of Sea Shepherd Conservation Society in a contempt action brought by the Institute for Cetacean Research, a Japanese whaling entity, related to Sea Shepherd’s interference with Japan’s killing of whales in the Southern Ocean. Following a two-week trial in the Ninth Circuit Court of Appeals and extensive appellate practice, Claire secured a defense verdict for her client. She subsequently represented Sea Shepherd and its founder, Paul Watson, in litigation against the Institute for Cetacean Research that raised multiple unique questions of standing, animal rights and international law.

As the Chair of the firm’s Seattle Pro Bono Committee, Claire led the citywide effort to provide legal assistance at SeaTac airport to travelers affected by President Trump’s travel bans. She has shown a commitment throughout her career to pro bono work, advising numerous nonprofit entities, volunteering at a variety of local legal clinics, representing asylum seekers in immigration court, working with the American Civil Liberties Union to bring an action against the state of California on behalf of English language learners in the state’s public schools, and submitting amicus briefs in State of Washington v. Trump and State of Hawaii v. Trump.

Claire joined Lane Powell from Wilson Sonsini Goodrich & Rosati in December 2012. She graduated from the University of Michigan Law School in 2003 (class rank 2 of 387), and clerked for the Honorable Richard Nygaard of the Third Circuit Court of Appeals. Before attending law school, Claire was a newspaper reporter for several years, primarily covering legal and political issues, and winning multiple state and national writing awards.